RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2002-04092

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

She be considered for promotion to the grade of lieutenant colonel by a Special Selection Board (SSB) for the Calendar Year 1994A (CY94A) Lieutenant Colonel Judge Advocate General (JAG) Central Selection Board, and any subsequent boards where instructions were given favoring minority and female officers, and that the SSBs be conducted without these portions of the instructions being given.

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THE APPLICANT CONTENDS THAT:

A decision by the U.S. Court of Appeals for the Federal Circuit that the Secretary of the Air Force’s Memorandum of Instruction (MOI) concerning consideration of minority and female officers, required differential treatment of officers based on their race and gender.  In view of this, and since these instructions were used during the CY94A board, as a white female officer, she should receive SSB consideration for promotion.

The applicant cites a U.S. Court of Appeals for the Federal Circuit case that questioned the constitutionality of Equal Employment Opportunity (EEO) language used by selection boards.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of major.

She was considered in-the-promotion zone (IPZ) by the CY94A Lieutenant Colonel JAG Central Selection Board that convened on 11 October 1994, and was not selected for promotion.

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AIR FORCE EVALUATIONS:

The General Law Division, AF/JAG, states, in part, that if the Board determines there has been an error or injustice, it may grant the applicant’s request.  The Air Force has consistently maintained, in litigation and public comment, that the challenged language is not a constitutionally objectionable classification and creates no benefits or burdens for competitors in the board processes.  In order to determine whether there has been an equal protection violation under the court’s strict scrutiny standard, further inquiry is required to ascertain whether the racial classification serves a compelling government interest and whether it is narrowly tailored to the achievement of that goal.  The government declined to appeal this part of the decision, thus the Air Force is bound by the court’s conclusion.

The AF/JAG evaluation is at Exhibit C.

The Officer Promotion Branch, AFPC/DPPPO, states that the applicant met the CY94A Lieutenant Colonel JAG Selection Board that convened on 11 October 1994 as an IPZ eligible.

The AFPC/DPPPO evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant states that individuals who were passed over for promotion more than three years ago are placed in a no-win situation and the Air Force cannot lose: if they appealed the instructions at the time, the Air Force would have said there has been no error or injustice and the instructions were just fine.  Now that some are appealing as a result of the Berkley decision, the Air Force is saying, “too late.”  Either way, the grievant loses and the Air Force wins.  That, in and of itself, is an injustice.

The applicant’s complete response is at Exhibit F.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant providing the applicant promotion consideration by Special Selection Boards (SSBs).  The applicant contends that due to the special instructions that were given to the CY94A board, minority and female officers were being evaluated more favorably than their records would otherwise permit.  As a white female officer, she feels that she should be given SSB consideration without the use of such instructions.  In support of her request, she cites the recent U. S. Court of Appeals for the Federal Circuit decision in Berkley, that the MOI to the selection board erroneously required differential treatment of officers based on their race and gender.  In view of the court’s findings, and since the Air Force is not appealing that decision, we recommend her records be corrected to the extent indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be considered for promotion to the grade of lieutenant colonel by Special Selection Boards (SSBs) for the Calendar Years 1994A, 1995B, 1997B, and 1997E Lieutenant Colonel Judge Advocate General (JAG) Central Selection Boards.

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The following members of the Board considered Docket Number 02-04092, in Executive Session on 12 May 2003, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Dec 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AF/JAG, dated 17 Jan 03.
    Exhibit D.  Letter, AFPC/DPPPO, dated 6 Feb 03.
    Exhibit E.  Letter, SAF/MRBR, dated 14 Feb 03.
	Exhibit F.  Letter, Applicant, dated 4 Mar 03.

                                   Vice Chair

AFBCMR BC-2002-04092

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to APPLICANT, be considered for promotion to the grade of lieutenant colonel by Special Selection Boards (SSBs) for the Calendar Years 1994A, 1995B, 1997B, and 1997E Lieutenant Colonel Judge Advocate General (JAG) Central Selection Boards.